Affirmed in Part; Reversed and Rendered in Part and Opinion filed June 30 ,

2015.

In The



## Fourteenth Court of Appeals

NO. 14- 14 -00306- CR NO. 14- 14 -00307- CR NO. 14- 14 -00308- CR NO. 14

- 14 -00309- CR NO. 14- 14

- 00310

- CR

ERIC L. BAUMGART, Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 6

Harris County, Texas Trial Court Cause Nos

. 1909495 , 1909496, 1909497, 1909498, and 1909499

O P I N I O N

A jury convicted appellant Eric L. Baumgart of five counts of violating the Private Security Act. See Tex. Occ. Code Ann. §§ 1702. 102 & 1702.108 (West 2012 & Supp. 2014). For each offense, the trial court assessed punishment at2

confinement for one year in the Harris County Jail, probated for two years. Appellant filed a timely notice of appeal in each case. We affirm in part and reverse and render in part.

S UFFICIENCY OF THE E VIDENCE In his first and second issue, appellant claims the evidence is legally insufficient to support his conviction in trial court cause number 1909495 on two grounds. The record reflects this offense arose from appellant acting as a guard for a construction zone on US 59. The first ground regards the allegation that appellant acted as a guard on a contractual basis for Alejandro Lopez. The second ground concerns the allegation that appellant acted as a guard on private property. 1
In this case, the indictment alleged appellant “did then and there unlawfully , intentionally or knowingly act as a guard company by engaging in the business of a guard on a contractual basis for another person, namely ALEJANDRO LOPEZ to prevent, observe or detect unauthorized activity on private property, without holding a license as a security services contractor.” Appellant’s first issue contends there is no evidence that he engaged in the business of a guard on a contractual

1 “ A person acts as a guard company for the purposes of this chapter if the person employs an individual described by S ection 1702.323(d) or engages in the business of or undertakes to provide a private watchman, guard, or street patrol service on a cont ractual basis for another person to: (1) prevent entry, larceny, vandalism, abuse, fire, or trespass on private property; (2) prevent, observe, or detect unauthorized activity on private property; (3) control, regulate, or direct the movement of the public, whether by vehicle or otherwise, only to the extent and for the time directly and specifically required to ensure the protection of property; (4) protect an individual from bodily harm including through the use of a personal protection officer; or (5) perform a function similar to a function listed in this section.” Tex. Occ. Code Ann. § 1702.108 (West 2012).3

basis for Alejandro Lopez. Appellant’s second issue argues there is no evidence he acted as a guard on private property

. We begin with appellant’s second issue.
Evidence was introduced that Alejandro Lopez was supervising the construction crew doing repairs on a bridge on US 59. Lopez worked for Main Lane Industries, a subcontractor for the Texas Department of Transportation (“TxDot”). Lopez testified the portion of US 59 that was under repair is not private property. He also testified the public did not have access to the part of the highway being repaired. Deputy John E. Clay of the Harris County Sheriff’s Office testified the public did not have access to that area of the road because it was “marked off” with barrels but stated it is “public roadway” and agreed it is not private property. Investigator Kirk Bonsal with the District Attorney’s Office also testified the public was not able to access the part of the road within the traffic cones. Adam Galland, the Assistant Area Engineer at the North Harris County Area Office for TxDot, testified lanes are closed to “keep the public out.”
The State argues that since the area in question was cordoned-off with barrels and a security guard was present to keep the public out, that section of the roadway was a private are a. The State asserts that if an area falls outside the definition of “public place” in the Texas Penal Code, it is private property. See Tex. Pen. Code Ann. § 1.07(a)(40) (West Supp. 2014). Although the definition of “public place” expressly includes highways, the State argues it was private because it was not accessible to the public. The State cites two cases in support of its argument. In State v. Gerstenkorn , 239 S.W.3d 357, 359 (Tex. App.—San Antonio 2007, no pet.), the court concluded a gated community was a public place as defined by the penal code.
The penal code defines “public place” as any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools,4

hospitals, apartment houses, office buildings, transport facilities, and shops. Tex. Pen. Code Ann. § 1.07(a)(40) (Vernon Supp. 2006). The definition of public place is cast in broad language. Shaub v. State , 99 S.W.3d 253, 256 (Tex. App.—Fort Worth 2003, no pet.); State v. Nailor , 949 S.W.2d 357, 359 (Tex. App.—San Antonio 1997, no p et.). The relevant inquiry is whether the public has access to the place. Shaub , 99 S.W.3d at 256; Loera v. State , 14 S.W.3d 464, 467– 68 (Tex. App.—Dallas 2000, no pet.). The definition of public place is open–ended and leaves discretion to the courts to expand its parameters where appropriate. Loera , 14 S.W.3d at 467.

Id . at 358-59. In Shaub v. State , 99 S.W.3d 253, 256 (Tex. App.—Fort Worth 2003, no pet.), the court similarly concluded a marina was a public place noting “the entire marina area appears to be accessible to anyone who wants to use it.”

These cases are illustrative of what is a public place but we disagree that any area that is temporarily closed off within a public place becomes private property. The penal code expressly states a public place includes highways and there is no limitation in the statute for a partial and temporary closure. The State cites no authority, and we are aware of none, supporting its premise that a public place is converted into private property when a portion of it is temporarily closed to public

access. Because the alleged offense did not occur on private property, a rational trier of fact could not have found all the elements of the offense beyond a reasonable doubt. Accordingly, appellant’s second issue is sustained and the judgment of the trial court in trial court cause number 1909495 is reversed and a judgment of acquittal is entered

. In light of this, we need not address appellant’s first issue.5 D ENIAL OF M OTIONS TO Q UASH In his third issue, appellant claims the trial court erred in denying his motions to quash the indictments on the grounds the State failed to negate an exception to the charged offense. In light of our disposition of appellant’s second issue, we only consider this issue as to the remaining offenses. 2
The prosecuting attorney must negate the existence of an exception in the indictment of the offense and prove beyond a reasonable doubt that the defendant or defendant’s conduct does not fall within the exception. See Tex. Pen. Code. Ann. § 2.02 (West 2011). Generally, where a penal statute embraces an exception which is part of the statute itself, the State must negate the exception in the charging instrument. McElroy v. State, 720 S.W.2d 490, 493 (Tex. Crim. App. 1986)

. See also Hicks v. State , 18 S.W.3d 743, 744 (Tex. App.—San Antonio 2000, no pet.). This rule applies to penal statutes included in the civil statutes as well as exceptions to criminal conduct in the penal code. McElroy v. State , 720 S.W.2d at 492. Failing to negate an exception is the same as failing to allege an
essential element of the offense and renders the indictment void. Id.
“Where an exception is in a separate section from the provision that states the offense and a prima facie case can be made without proof negating the exception, it is not an essential requirement that it be negated in the information or complaint.” McClain v. State , 14- 97 -00355-CR, 1997 WL 312309, at *1-2 (Tex. App.—Houston [14th Dist.] June 12, 1997, pet. ref’ d) (mem. op.) (not designated for publication) (citing American Plant Food Corp. v. State , 508 S.W.2d 598, 604- 05 (Tex. Crim. App. 1974); and Bragg v. State , 740 S.W.2d 574, 576 (Tex. App.— Houston [1st Dist.] 1987, pet. ref’ d) ). The exception for law enforcement personnel

2 These offenses all arose from appellant’s work as a security guard for Humble Bingo Unit Trust.6

is in a separate section from the provision stating the offense — “Subchapter N. Exceptions” of “Chapter 1702. Private Security.” See Tex. Occ. Code Ann. § 1702.322 (West 2012 & Supp. 2014). A prima facie case of acting as a security services contractor without a license can be made without proof negating the exception

. See id. Therefore, the State was not required to negate the exception in the indictments and the trial court did not err in denying the motions to quash. Appellant’s third issue is overruled.

E RROR IN THE C OURT ’ S C HARGE Appellant’s fourth and final issue contends there was error in the court’s charge. In light of our disposition of appellant’s second issue, we only consider this issue as to the remaining offenses.
Appellant argues the trial court erred in failing to apply the law regarding law enforcement personnel to the facts of the case, see Tex. Occ. Code Ann. § 1702.322, and in failing to instruct the jury that a reasonable doubt on the issue required acquittal. Appellant’s initial arguments are premised upon this court first finding section 1702.322 is a defensive issue, not an exception. As noted above,

se ction 1702.322 is an exception to the offense. Appellant later asserts that regardless of whether section 1702.322 is an exception or a defense, the trial court was obligated to include an application paragraph in connection with that section

. We will consider whether the trial court erred in not applying the law regarding the law enforcement exception to the facts of the case in the charge given to the jury.

The a bs t ra ct portion of the jury charge d ef in es the charge d offense as

follo ws :

It is u nl awful for an y p er so n to engage in the bu si ness

of, or to perform any s er vi ce as a guard company, or to offe r his ser

vi c es in such capacities or engage in any7 bu sines s or b us in ess act iv it y re q ui red to be licensed by th e Texas Private Security Act, unless the person holds a license as a security services co nt r ac to r.
The ab st r act

por ti on of the charge also pr ov ides a description of s ection
1 7 0 2

. 3 2 2 ’ s la

w enf o r ce m e n t pe r so n n el p r ov i si o n :

It is not a v io la ti on of the Pr ivate Se curity A ct for

a person who h as full-time em plo yment as a pea ce offi ce r , t o receive compensatio n fo r pr iv ate em plo yment on an ind iv idual or independent c on t ra ctor basis as a guard, i f th e office r: (A) is em

plo yed in an em

pl oy ee -em

plo y er
re lat io nshi p or is employ ed on an in d iv idu al co nt r ac tua l ba si s; (B) is not in the em plo y of an ot h er peace officer; (C) is not a reserv e offi ce r; and (D ) works as a peace officer on av er age at l ea st 3 2 hours a w ee k, is compe ns at ed b y th e st ate or politica l s ub div is ion o f the st ate at the ra te of m ini mu m wage o r h ig her, and is e nt itled to all em plo y ee benefits

o ffered to a peace officer by the state o r po li ti c al

s ub div is i on.
Fo ll o wi ng the abstra ct section of the ju ry charg e, the application p ar agraph st ates:
Now, th ere fore, if you believe from th e ev id ence

beyond a rea so na

bl e doubt that...th e d ef

endant, ERI C L. B AU M GA RT, di d th e n an d ther e unlawfully , inten ti on ally or k now in gl y act as a guard compan y b y enga gi n g in th e busines s of a guar d on a co nt r ac tua l ba si s for an ot h er

p er son ...to prevent, o bs er ve o r detec t unauthorize d ac ti v it y o n privat e property , w ith ou t h ol ding a license as a secur it y ser vi c es cont ra ctor, the n you shall find the defendant guilty.8

Th e charge further instructed th e juro rs that:

The burden of proof in all criminal cases rests upon the State throughout the trial and never shifts to the defendant.

. . . The prosecution h as the burden o f proving th e d ef endan t guilty, and it m

us t do so b y proving e ach and every element of th e offe ns e charge d bey on d a re asonabl e d ou bt , and if it fa il s t o d o so , you must acqui t th e d ef endant.

An application paragraph encompassing the exception could have read as
follows:
Now, th ere fore, if you believe from th e ev id ence

beyond a rea so na

bl e doubt that on or about November 17, 2012, th e d ef

endant, ERIC B AU M GA RT, di d th e n
an d ther e unlawfully

, inten ti on ally, or k now in gl y act as a guard compan y by enga gi n g in th e busines s of a guar d

on a co nt r ac tua l ba si s for an ot h er p er son to prevent
o bs er ve o r detec t unauthorize d ac ti v it y o n privat e property , w ith ou t h ol ding a license as a secur it y ser vi c es cont ra ctor, and further find beyond a reasonable doubt that: the defendant did not work as a peace officer on the average of at least 32 hours a week or ; that the defendant was not compensated by the state or a political subdivision of the state at the rate of the minimum wage or higher or ; that the defendant was n ot entitled to all employee benefits offered to a peace officer by the state or a political subdivision, the n you shall find the defendant guilty.

We can find no authority, nor have the parties cited any authority, that stands for the proposition that the failure to include an application paragraph regarding a statutory exception to an offense is error

. W e will assume without deciding that9

there was in fact error

. At the outset, we note that there was no objection to the court’s charge

. Therefore, any harm must be egregious to require reversal

. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g)

. An

egreg io us h arm

analy si s con si ders: (1 ) th e enti re jury charge; (2) the state of the
eviden ce inclu di ng the contested i ss ues and the weight o f th e probative evidence; (3) the argume nt s o f th e parties; and (4) any oth er relevant in forma ti on revealed by th e re cord of th e tri al as a whole

. Id

. Ju ry charge er ror is egreg io usl y h ar mful
if it affects the ver y b as is of the case, deprives the de fe ndant of a valuable r ig ht , or vita ll y af fe cts a d efe nsive theory

. Id

. Eg re gi ous h arm

is a di fficult standard to

prove

. Tay lo r v. St

at e , 33 2 S. W.3d 483, 489 (Tex. Cr im. A pp

. 20 11).

Re garding the initial fac tor, a re vi ew of th e enti re jury charge indicat es

an y err o r did no t result in egregi ou s h ar m

. The “l aw enfor ce ment personnel ” issue was not presented i n th e applicat io n p ar agraph

. However, it was e xp la in ed in detail
in the abstra ct se ction of th e ju ry charg e. A prop er

recitation of the law in the
abstra ct section o f the ch arg e m ini mi zes er ro r in th e ap pl ication p ar agraph

. Nava v

. State , 415 S.W.3d 289, 298 n.21 (Tex. Cr im. A pp . 2 01 3).
The applicat io n p ar agrap h contained in the charge instructed ju r o r s t o f in d

ap p e l l a n t g u i lt y o n l y i f h e “

u n l a w f u ll y ” ac t e d as a g u a r d wi t h o u t a li c e n s e

. T he jury was required to find appellant was not a law enforcement officer before finding him guilty of the offense. A r e v i ew o f t h e e n t i re c h a r g e i n d i c a t e s ap p e l l a

n t

w as n o t e g r e g io u s l y har m ed by a n y err o r

. Th e sec on d fa cto r looks at the stat e of th e eviden ce

. I n det er m in in g wheth er
egreg io u s harm o cc urr ed wi t h regard to an er ror relat in g to an exception , we must

c o n si d er th e pl a

u s ib i l it y o f t h e e v i d e n ce r a i s in g th e exception

. V i ll a r r e a l v

. S t a t e , 45 3 S. W.3d 429, 436 (Tex. Crim. A pp . 2015)

. We conclude the e v i d e n ce negating the exceptions for l aw e n f o rce m e n t p e r s on n e l wa s strong

.10

To negate an e x c e p t io n u nd e r t h i s s t a t u t e, the State w as re qu i r e d t o prove
t h a t appellant : ( 1 ) did not w o r k a s a p ea c e o f

f i cer at l e a s t 3 2 h o u r s p er w eek o n

a v er a g e ; ( 2 ) w a s not c o m p e ns a t e d b y a ra t e e q

u al t o m i ni m u m w a g e at le a s t ; a

n d ( 3 ) w as not e n ti tl e d t o a l l e m plo y ee b e n ef

i t s o f f ered t o a p eace o f

f i c e r

. Tex. O cc

. C od e A nn . § 1702.322 (1) (West 2 01 2)

. Chad Pafford 3 te st ified on behalf of appellant th a

t he wo r k e d m o re th an 3 2 h ou r s p er w e e k o n a v er a g e

. However, on cross examination by the State, Pafford admitted there was n o documentation t o

s u pp o r t t h i s claim

. Pa f

f o rd s t a t e d t h at a p p e l l a n t w o r k e d o n “ th e h o n o r s y st e m

. ”
T h e L ib e r

t y C o un t y T

rea su re r , K i m H arr is , t e s t i f i ed on behalf of the State t h a t

a p p e l l a n t w as n e v e r a p a i d e m

plo y ee o f L ib e r t y Coun t y

. As to the m ini mum-wage re qui re me nt , Paffo rd stated th at appellan t never

re ceive d a p a

y c h eck while w o r ki n g as a f u l l

- t i m e o f

f i cer f o r n e ar l y t w o y ear s

. Pa f f o r d testified t h at a

pp e l l a nt ’ s sole c o m

p e n s a t i o n w as th e u s e o f a “ t a k e
- ho m e
p a t r o l car” a

n d t h e us e o f u n s p e c i f

i e d “ c o u n t y e qu i p m e nt .” Pafford c o n si d er e d t h e

v a l u e o f t h e u s e o f t h e s e i t e m s t o b e m o re t h a n m in i m u m w a g e. T h e car w a s a 20 0 0 F o r d Cro w

n V i c t o r i a wit h approximately 2 6 0 , 0 0 0 m il es. Pa f f o r d d i d n o t

r e p o r t t h i s “ c o m

p e n s a t i o n ” t o th e L ib e r

t y C ou n t y T

ax A ss e s so r , t h e I R S, o r a n y oth er t a xin g a u th o r it y

. With regard to the benefits req ui reme nt , Harr is st ated th at c ounty

em plo y ee s , in clu din g l aw enforcement pers on nel, are of fe r ed various cou nt y ben ef it s. H er off ic e ma in tains f

il es for workmen’s compensatio n ben ef it s for all

cou nt y em

plo y ee s

. T h ere w as n o rec o r d o f a pp e l l a n t recei v i n g a

n y be n e f i t s

. On the whole, the State’s e v i d e n ce reg arding t h e exception for l aw

e n f o rce m e n t p e r s onn e l w as strong. F i r s t , there was no documentation to support
that a p p e l l a n t w o r k ed 3 2 h o u rs p er w eek o n a v e r a g e

. F u r t h e r m o re, Pafford ’s

3 Pafford was the elected constable who gave appellant a job.11

reliance on “the honor system” reflects that he d i d n o t v e r i fy a pp e l l a nt ’ s wo r k
h o u r s

. T he record demonstrate s that Pafford did not have ac t u al k no w l e d g e o f t h e

a m ou n t of h ou r s w o r k ed b y ap p e ll a n t

. Next, th er e is no eviden ce that appellant w as paid a t least minimum wage. Appellant received no pay at all. The record reflects no evidence was presented regarding what minimum wage was at the time of the offense or the value of appellant’s use of the county car and other county equipment

. As to the next requi re ment, Pa fford te st ifi ed on cross examination by the
State that h e d i d n o t k no w i f a p p e l l a n t w a s e n t i t l e d t o a l l t h e b e n e f i t s o f fe r ed b y L ib er t y C o un t y

. Pafford’s b e l i ef t h at a

p p e ll a n t was entitled to re c e i v e w o r k m e n ’ s

c o m p e n s a t io n b e n ef

it s w a s c o nt r a d i c t ed b y H arr i s a n d h er k n o w l e d g e o f t h e L i b e r t y Coun t y pers o n n el f

i l e s

. Given the overall state of the evidence, it is highly unlikely the jury could
h a ve f o und t hat the S tate failed to negate any of the exceptions u n d er t h e l aw

e n f o r ce m e n t p e r s on n el exception to the s t a t u t e

. Additionally , the State brought
forth evidence that a

p pel l a n t w a s not a fu l l

- ti m e o f

f i c e r (as r e q

u ired un d er s e c t i o n 17 02

. 3 2 2 )

. A t t h e ti m e o f h is arr e s t a t th e L op e z co n s t r u c t i o n s i t e, h e p o s ses s e d an

u n e x pi r ed id e n ti f

i c a t ion ca r d t h a t id e n ti f i e d h i m as a r

e s e r ve o f f icer f o r t he
L ib e r t y C ou n t y C onst a

b l e

. T h e s t a t e of t he e v i d e n ce d e m onst r a t e s t h a t any possible err o r relat i ng to th e omission o f the exception for law enforcement personnel in the application paragraph of the charge did not r e s ult in e g r e g io u s h ar m

. We must also consider wheth er egreg io us h arm

occu rr ed as a re sult of ju ry charge erro r in light of the parties’ argume nts

. The reco rd re flects th at b ot h

par ti es addressed th e exception for l aw e n f o r ce m e n t p er so nn e l a

n d a p p l i e d th at

s t a tu t o ry l aw t o t h e fac t s o f t h e c a s e

. Appellant argued that the State failed to12

prove that he was not a full-time police officer. The State argued in closing that they had proved that he was a reserve officer and alternatively that he did not meet the three requirements. From the arguments the jury would have understood that the burden was on the State to negate the exception. Therefore , the record clearly
demonstrates that t h e j u ry r e ce i v e d in f o r m a ti o n a

p p l y in g t h e l aw t o t h e fac t s d e s p i t e a n y err o r i n t h e j u ry ch a r g e ’ s ap p l i c a

t i o n p ar a g r a

p h

. Given the for e going analysis , we conclude the error, if any, did not cause appellant egregious harm. Accordingly, we overrule appellant’s fourth issue.

C ONCLUSION For the reasons set forth above, we reverse the judgment of conviction in trial court cause number 1909495 and render a judgment of acquittal. The judgments in trial court cause numbers 1909496, 1909497, 1909498, and 1909499
are affirmed.

/s/ Marc W. Brown Justice

Panel consists of Justices Christopher, Brown, and Wise. Publish — Tex. R. App. P. 47.2(b).